U.S. v. Feldman

• Decision Date: 05 May 1976
• Docket Number: Nos. 75-1303,75-1526,s. 75-1303
• Citation: U.S. v. Feldman, 535 F.2d 1175 (9th Cir. 1976)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Violet Josephine FELDMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Irving HYMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1175

535 F.2d 1175

UNITED STATES of America, Plaintiff-Appellee, v.Violet Josephine FELDMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Irving HYMAN, Defendant-Appellant.

Nos. 75-1303, 75-1526.

United States Court of Appeals Ninth Circuit.

May 5, 1976.

Rehearing and Rehearing En Banc Denied June 23, 1976.

Arthur Lewis(argued), Los Angeles, Cal., for appellant Feldman.

Sull Lawrence(argued), Beverly Hills, Cal., for appellant Hyman.

Stuart W. Rudnick, Sp. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before CARTER, GOODWIN and KENNEDY, Circuit Judges.

JAMES M. CARTER, Senior Circuit Judge:

The defendants were charged below with violation of 18 U.S.C. § 1955(illegal gambling business) and of 18 U.S.C. § 2(aiding and abetting), were convicted in a non-jury trial and sentenced.Their appeals have been consolidated.

Each defendant made a motion to suppress evidence obtained by a court-authorized electronic surveillance of telephone calls.On appeal they urge that under 18 U.S.C. § 2516and§ 2518(1)(c) and (3)(c)the trial court erred in denying the motion to suppress.

We affirm.

CONTENTIONS ON APPEAL

1.That the affidavits in support of the order for electronic surveillance failed to satisfy the requirements of 18 U.S.C. § 2518(1)(c) and (3)(c) that there be a showing that other investigative techniques had been tried and failed or that they would be reasonably unlikely to succeed if tried or would be too dangerous.

2.That the showing that confidential informants had refused to testify in court proceedings was insufficient.

3.That the affidavits in support of the order for electronic surveillance were defective in that they did not meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964)andSpinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969).

4.That the affidavits did not establish probable cause for the issuance of a search warrant; therefore, they were insufficient to support an order for electronic surveillance of telephones.

5.That the Assistant Attorney General authorizing the electronic surveillance did not comply with 18 U.S.C. § 2516 in that there is no showing that he arrived at his decision only after a careful evaluation and screening of the request.

6.That the order for surveillance was applied improperly to public telephones.

7.That the interception of intrastate telephone calls violated 18 U.S.C. § 2517(4) since the Constitution of California and its Penal Code made the calls privileged communications within 18 U.S.C. § 2517(4).

8.That 18 U.S.C. § 1955 is unconstitutional.

9.That Title III(18 U.S.C. §§ 2510-2520) is unconstitutional.

THE FACTS

The facts at trial were obtained from the wiretapped conversations, a written stipulation, the testimony of F.B.I. Agent Cross and of defendant and accomplice Zambros, who was granted immunity.That evidence revealed a large-scale bookmaking operation in metropolitan Los Angeles during the 1973 football season, including daily wagers often exceeding $2,000.Hyman occasionally assisted in the day-to-day management of the operation, but he and Feldman served primarily as "agents" who relayed bets to the appropriate "front".If the bettor won, the agent would pay him; if he lost, the agent would collect from him.The taped conversations helped to verify Zambros' identification of the defendants as active agents in the operation.

There were four other defendants below.The charges against Farkas were dismissed as part of a plea bargain after he pled guilty to charges in a related case.Eisenberg and Hanft pled guilty prior to trial.Zambros was granted immunity and appeared as a government witness.

I.

Section 2518(1)(c) and (3)(c) Were Satisfied.

Defendants first contend that the affidavits of Special Agent Charles B. Walker did not satisfy the requirement of 18 U.S.C § 2518(1)(c)¹(describing the application for a courtorder) of

"a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;"(emphasis added)

The argument is two-fold: (1) that the affidavits recite the insufficiency of alternative procedures in gambling prosecutions in general, whereas the statute requires that the alternatives must have failed or be likely to fail in the particular case at hand; and (2) that the other allegations in the affidavits reveal that other methods would have worked in the present case.

The first part of the argument is interesting and is persuasive that law enforcement agencies may not rely upon the general difficulty of apprehending and convicting bookmakers to justify the use of wiretapping.But that issue need not be reached because the affidavits of Special Agent Walker clearly indicate that numerous alternative procedures were either tried or reasonably rejected in this case.The affidavits indicate that (1) confidential sources One through Six refused to testify in court proceedings; (2) physical surveillance had been tried and was continuing, but was unsuccessful in establishing the necessary elements of the crime with respect to most of the participants; (3) the nature of this operation was such that apprehension by means of infiltration, phone spots, codes, floating field lieutenants, or use of telephones with limited toll record outputs, was highly unlikely, particularly since the operation would most likely be dissolved at the close of the football season, thereby precluding some lengthy and cumbersome procedures which might otherwise be employed.

Defendant Feldman suggests some ways in which surveillance, infiltration, etc. might work.She cites no authority, however, entitling her to second-guess the F.B.I. and invalidate a warrant authorizing wiretaps by suggesting a number of possible alternatives reasonably discarded as not feasible by those in charge of the investigation.

This circuit has upheld the validity of an affidavit similar to the one in our case, stating " . . . the law does not require that a wiretap be used only as a last resort."United States v. Kerrigan, 514 F.2d 35, 38(1975), cert. den. sub nom.Karrigan v. United States, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249(1975).United States v. Smith, 519 F.2d 516(9 Cir.1975) states:

"Congress, in its wisdom, did not attempt to require 'specific' or 'all possible' investigative techniques before orders for wire taps could be issued.As United States v. Giordano, 416 U.S. 505 at 515, 94 S.Ct. 1820, 40 L.Ed.2d 341(1974) states wiretap 'procedures were not to be routinely employed as the initial step in criminal investigations,' but it is equally true 'that the statute does not require the government to use a wire tap only as a last resort.'United States v. Kerrigan(supra ), United States v. Staino, 358 F.Supp. 852, 856-7(E.D.Pa.1973)."

United States v. Turner, 528 F.2d 143(9 Cir.1975) states, after quoting 18 U.S.C. § 2518(1)(c):

"In this respect the affidavits in support of the applications stated that Ethridge was suspicious of being followed by law-enforcement officers; that the Kinglet Drive and Blue Heights residences were located on single-lane roads in mountainous areas, making undetected visual observations extremely difficult; that informants were unwilling to testify against Ethridge for fear of retaliation; that Ethridge's unwillingness to deal with strangers precluded undercover infiltration of his organization; that while agents had knowledge of Ethridge's involvement, they had been unable, by resort to normal investigative procedures, to obtain evidence to convict him and the other members of his organization.

"In our judgment these affidavits provided that necessary 'factual basis,'seeUnited States v. Kerrigan, 514 F.2d 35, 38(9th Cir.1975), to indicate that the 'practical and commonsense' standard, S.Rep. No. 1097, supra, at 101, required under the statute was satisfied.SeeUnited States v. Brick, 502 F.2d 219, 224(8th Cir.1974);United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1014-16(1974);United States v. Falcone, 364 F.Supp. 877, 888-90(D.N.J.1973), aff'd on this issue on opinion below, 505 F.2d 478, 480(3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432(1975)."(p. 152).

United States v. Robertson, 504 F.2d 289(5 Cir.1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1568, 43 L.Ed.2d 778, stated that the purpose of § 2518(1)(c) was not to " 'foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques. . . . 'The provisions contemplate that 'the showing be tested in a practical and commonsense fashion.'S.Rep. No. 1097, 90th Cong., 2d Sess. 100 U.S.Code Cong. & Admin.News 1968, pp. 2112, 2190."Id. at 293.

In Robertson, supra, the court also refused to scrutinize the affidavit piecemeal, require feasible but assertedly impractical physical surveillance, or question the essentiality of information sought by way of wiretaps: "To hold otherwise would constitute unwarranted court interference with legitimate investigative discretion contrary to the congressional intent."Id. at 293.

In our case, as indicated supra, the affidavits indicate a conscientious effort on the part of the F.B.I. to employ "other investigative procedures" where possible.Only after these alternatives failed to produce sufficient evidence to take to trial and other methods were discarded as reasonably "unlikely to succeed if tried," was the warrant authorizing electronic surveillance sought.That is all the statute requires.

II.

The Refusal of Informants to Testify May Be Properly Relied On.

Defendants contend that the statement in the affidavits that the informants had stated they would...